SIU Director’s Report - Case # 20-OCI-257
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Mandate of the SIU
Under the Police Services Act, the Director of the SIU must determine based on the evidence gathered in an investigation whether an officer has committed a criminal offence in connection with the incident under investigation. If, after an investigation, there are reasonable grounds to believe that an offence was committed, the Director has the authority to lay a criminal charge against the officer. Alternatively, in all cases where no reasonable grounds exist, the Director does not lay criminal charges but files a report with the Attorney General communicating the results of an investigation.
Freedom of Information and Protection of Privacy Act (“FIPPA”)Pursuant to section 14 of FIPPA (i.e., law enforcement), certain information may not be included in this report. This information may include, but is not limited to, the following:
- Confidential investigative techniques and procedures used by law enforcement agencies; and
- Information whose release could reasonably be expected to interfere with a law enforcement matter or an investigation undertaken with a view to a law enforcement proceeding.
- Subject Officer name(s);
- Witness Officer name(s);
- Civilian Witness name(s);
- Location information;
- Witness statements and evidence gathered in the course of the investigation provided to the SIU in confidence; and
- Other identifiers which are likely to reveal personal information about individuals involved in the investigation.
Pursuant to PHIPA, any information related to the personal health of identifiable individuals is not included.
Personal Health Information Protection Act, 2004 (“PHIPA”)
Other proceedings, processes, and investigationsInformation may have also been excluded from this report because its release could undermine the integrity of other proceedings involving the same incident, such as criminal proceedings, coroner’s inquests, other public proceedings and/or other law enforcement investigations.
“Serious injuries” shall include those that are likely to interfere with the health or comfort of the victim and are more than merely transient or trifling in nature and will include serious injury resulting from sexual assault. “Serious Injury” shall initially be presumed when the victim is admitted to hospital, suffers a fracture to a limb, rib or vertebrae or to the skull, suffers burns to a major portion of the body or loses any portion of the body or suffers loss of vision or hearing, or alleges sexual assault. Where a prolonged delay is likely before the seriousness of the injury can be assessed, the Unit should be notified so that it can monitor the situation and decide on the extent of its involvement.
This report relates to the SIU’s investigation into an injury a 56-year-old man (the “Complainant”) suffered.
Notification of the SIUOn October 8, 2020, at 1:37 a.m., the North Bay Police Service (NBPS) notified the SIU of the Complainant’s injury. On October 7, 2020, at 11:40 p.m., NBPS received a call from a woman who lived in an apartment on Clarence Street. She complained that there was a “psycho” outside who had entered her residence through the window, then exited through the front door. A police officer arrived on Clarence Street and saw a man walking. The police officer approached the man [now known to be the Complainant] and put him to the ground. The Complainant was taken to North Bay Regional Health Centre (NBRHC) and diagnosed with a broken ankle.
The TeamNumber of SIU Investigators assigned: 4
Number of SIU Forensic Investigators assigned: 0
Complainant:56-year-old male interviewed, medical records obtained and reviewed
Witness Officers (WO)WO #1 Interviewed, and notes received and reviewed
WO #2 Interviewed, and notes received and reviewed
WO #3 Notes reviewed, interview deemed not necessary
Subject Officer (SO)SO Interviewed, and notes received and reviewed
The SceneThe scene of the Complainant’s arrest was the grass boulevard at the northeast corner of Athlone and Clarence Streets, North Bay.
Video/Audio/Photographic Evidence The SIU canvassed the area for video or audio recordings, and photographic evidence, but was not able to locate any.
Police Communications RecordingsOn October 7, 2020, at 11:41 p.m., the NBPS received a call to attend an apartment on Clarence Street, North Bay. Outlined below are the communications recordings from the call for assistance and police officer radio transmissions relating to this incident.
Call for Assistance Made to NBPS
- A woman called NBPS and reported she needed help right away, saying that she thought there was a “psycho” outside her house.
- She requested that NBPS attend her residence on Clarence Street.
- Stammering as she spoke, she stated she had welcomed the Complainant into her house.
- When asked who the man was, the woman responded, “An asshole.” She continued to speak nonsensically, hyperventilating.
- The woman was scared, screamed, cried, stated the Complainant was climbing through her window, continued to scream, yell and hyperventilate as the call taker (CT) attempted to gather information.
- The woman did not respond when asked what apartment she was in.
- A man’s voice could be heard in the background saying something like, “It’s the police.” The woman stated that the police were there. The CT seemed confused by that. The woman screamed again.
- The CT asked the woman who was there, and what apartment she was in. The woman provided her apartment number.
- When questioned who was there, the woman hyperventilated, would not answer, and then responded, “He left.”
- Further information was provided that it was a secure apartment building, that the Complainant had left through the door, and his direction of travel was unknown. The woman refused to provide her last name.
- She refused to identify the man.
- The woman finally provided her surname and admitted to consuming alcohol.
- The woman was now alone in her apartment. No one was outside her window and she was OK.
- She reported the Complainant had entered the apartment and obtained his stuff, and that he was not that bad. The woman refused to provide police the Complainant’s name.
- The CT advised the woman police were there now and that the CT would stay on the phone with her until the officer got to her apartment. The CT asked that the woman buzz the officer in.
- The woman asked if she was going to be taken away, and the CT advised her the police were going to ensure she was OK.
- The CT advised the officer was there now, and that he should be up in a minute.
Police Radio TransmissionsThere were no time stamps on the radio transmissions made.
- Communications Operator (CO) requested that a couple of units attend a Clarence Street apartment for a female screaming hysterically on the phone, saying that there was a psycho outside [known to be the Complainant], whom she had originally welcomed in. She had asked him to leave, and he was now back attempting to climb back in a window. The woman was screaming now.
- Two police officers [known to be the SO and WO #2] acknowledged.
- CO advised the scene was at the Clarence Street apartment.
- A police officer inquired about the window location, and CO advised it was difficult to get information from the woman. The CO said the Complainant got in through a window, but had now left through a door.
- Police officers asked for a description.
- CO advised the woman was recanting some of her story. She was ashamed, not making a lot of sense, and admitted to drinking. There was a suggestion of possible drug use.
- Police officer advised “out with a male” (indiscernible) location.
- CO advised that the woman had declined to disclose who the man was and would not provide descriptors.
- Police officer requested Emergency Medical Services (EMS) for the Complainant with what was believed to be a fractured ankle.
- CO inquired from WO #1 of any coronavirus screening. WO #1 identified the man as the Complainant.
- CT called a police officer, advised that CO had a difficult time making out what the woman said. She was hysterical and did not make sense. Officers were there now. CT replayed the call and said it “kind of sounded like he was pointing a gun at her" but that the CO could not make it out.
- CT told the police officer that officers were out with a man [now known to be the Complainant] at Athlone Street and Clarence Street. The CT was unsure if this was the same man from Clarence Street as the woman would not provide a description. It was noted that this could possibly be a mental health call, and it did not make a lot of sense.
- CT was unsure if police officers had spoken with the woman yet. The police officer requested WO #1 call him back.
- CO inquired if anyone had contacted the woman yet as the CO had officer safety info.
- Police officer replied in the negative and indicated that WO #2 was en route.
- CO requested WO #1 call the Staff Sergeant (S/Sgt).
- CO received a phone call from an officer [believed to be WO #2]. CO explained that may have heard between the woman’s screams that the Complainant might have pointed a gun at her.
- WO #2 advised CO he was told the woman was an alcoholic, and it was a common occurrence for her to scream. He would attempt to confirm gun information.
- An officer [believed to be WO #1] called CO. Yelling could be heard in the background. CO began to inform WO #1 of the possible gun information.
- WO #1 advised the situation was not good, and he had just pulled in. The Complainant was down with WO #2 and the SO. The Complainant’s ankle was sideways, broken. CO asked how the injury occurred. WO #1 did not know.
- The Complainant was very belligerent, and screaming could be heard. The Complainant was trying to get up. WO #1 held the Complainant in place to avoid the bone from coming out.
- CO advised WO #1 that the woman might have stated that the man had a gun. WO #1 asked if it was the Complainant. CO responded the woman refused to provide a name.
- WO #1 abruptly ended the call as the Complainant was attempting to stand up.
- Police officer called CO to request that WO #3 be dispatched to speak with the woman. The CO was updated that police officers were having problems with the Complainant. He was belligerent, and trying to stand with a broken ankle. WO #1 was advised of the possibility of a gun.
- CO dispatched WO #3 to assist WO #2 at the Clarence Street apartment.
- WO #3 called the CO to obtain officer safety information.
- WO #1 advised that WO #2 and WO #3 were at the woman’s residence and that the Complainant was going to hospital with EMS, and he would follow EMS.
- WO #1 called the S/Sgt and provided an update on the status of police officers in the investigation. It was noted that the Complainant was being transported to hospital. The SO explained that the injury occurred during the arrest.
- WO #1 further explained that the SO had observed the Complainant on Clarence Street coming from the immediate area of call, and stopped to question the Complainant.
- WO #1 advised the Complainant became belligerent, and refused to stop. The SO tried to get out of his car, and it was believed the Complainant smashed the door on the SO’s leg.
- It was noted that the SO exited his police vehicle, grabbed the Complainant, and tried to effect his arrest for assaulting a police officer. When WO #1 pulled up, WO #2 was on scene.
- The SO and WO #2 were on top of the Complainant on the sidewalk, and the Complainant’s ankle was sideways.
- WO #1 advised the injury was not there prior to police interaction, and it therefore occurred during arrest. It was noted that the SO would be back at the station soon, and that WO #1 was going to hospital. At this time, the Complainant was arrested for assault.
- It was noted that SIU was to be notified. It was still unknown if the Complainant was related to the Clarence Street apartment call.
- WO #1 advised that a search revealed the Complainant did not have possession of a firearm. He had been handcuffed but they were removed later because of the injury.
- At 12:09 a.m., WO #1 cleared the scene, following EMS to the hospital.
- At 12:13 a.m., WO #1 arrived at hospital with EMS.
- The S/Sgt received a call from WO #3 advising that the woman was uncooperative but it was established that the man in question was the Complainant. The woman had a prior intimate relationship with the Complainant. Both drank heavily that night, and there were several bottles in the apartment. The Complainant had made unwanted sexual advances.
- WO #3 advised the woman was very drunk, and her statements were all over the place. She alleged she was slapped, punched, put in a choke hold, and threatened. The woman was able to get the Complainant out of the apartment, and he knocked on her windows. After the Complainant apologized, she let him in.
- The woman refused to attend the station to provide a statement but agreed to talk to a female police officer at her residence. A female police officer was dispatched.
- WO #1 called the S/Sgt and confirmed that the Complainant required surgery. He had informed the Complainant of his charges, provided rights to counsel and a caution, and he believed the Complainant was under the influence of drugs.
Materials obtained from Police ServiceUpon request, the SIU obtained and reviewed the following materials and documents from NBPS:
- Use of Force Training Record – the SO;
- Disclosure Log;
- Event Details;
- General Occurrence Report;
- Incidences involving the Complainant;
- Communication recordings;
- Notes-WO #1;
- Notes-WO #2;
- Notes-WO #3;
- Notes-the SO;
- Occurrence Summary;
- Sick Prisoner Report – the Complainant;
- Standard Operating Procedure – Use of Force;
- Standard Operating Procedure – Prisoner Care and Control; and
- Use of Force Report – Injury.
Materials obtained from Other SourcesThe SIU obtained and reviewed the following records from non-police sources:
- The Complainant’s medical records from the NBRHC.
The SO was the first officer to arrive in the area. As he approached the address on Clarence Street, the officer observed a man on the east sidewalk walking south. Deciding he would question the man to see if he was the subject of the woman’s complaint, the SO pulled up to the man in his cruiser and asked where he was coming from. The man refused to say and continued to walk southward. Not satisfied with the man’s response, the SO again approached in his cruiser, this time deciding he would exit to speak with him on foot. As the SO brought his cruiser to a stop and opened his driver’s door to exit, the man pushed the car door back into the officer. Now fully out of his cruiser, the SO took hold of the man to arrest him.
The man was the Complainant. He was grabbed by the SO and taken to the ground on the grass boulevard at the northeast corner of Athlone and Clarence Streets. The SO was soon joined by WO #2 and the two together handcuffed the Complainant’s arms behind his back while he lay prone on the ground. The Complainant began to complain about a sore ankle.
Shortly after the Complainant’s arrest, WO #1 arrived on scene and made arrangements for the attendance of an ambulance. The Complainant’s handcuffs were removed while they waited for the paramedics. The Complainant was taken to hospital by ambulance and diagnosed with a fractured right ankle.
Section 25(1), Criminal Code -- Protection of persons acting under authority
(a) as a private person,(b) as a peace officer or public officer,(c) in aid of a peace officer or public officer, or(d) by virtue of his office,
Analysis and Director's Decision
Pursuant to section 25(1) of the Criminal Code, police officers are immune from criminal liability for force used in the course of their duties provided such force was reasonably necessary in the execution of an act that they were required or authorized to do by law. The evidence establishes that the Complainant, annoyed with the SO’s attempts to extract information from him, closed the door on the officer as he was in the process of exiting the cruiser. The Complainant was entitled to not answer the SO’s questions. He was not entitled to push the door into the left side of the officer’s body in the fashion he did. When he did so, he was subject to arrest for assault.
There is a discrepancy in the evidence as to the manner in which the Complainant was arrested. In one rendition of events, it is alleged that the Complainant was tackled from behind by the SO, in the process of which his ankle was stepped on by the officer causing the fracture. It is further alleged that once prone on the ground, the SO repeatedly pounded the Complainant’s face into the ground until WO #1 arrived and pulled the officer off him.
While I am mindful that a charging authority must limit its assessment of the strength of competing evidence to threshold considerations, I am not satisfied that this account of what occurred is sufficiently reliable to warrant being put to the test by a trier-of-fact. As there are too many frailties associated with this account, it would be unsafe and unwise in my view to rest criminal charges on the strength of this evidence alone.
What remains is the account of the SO, which is not materially contradicted by any independent evidence. According to the officer, stepping out from his cruiser after the door was pushed in on him, he and the Complainant became quickly enmeshed in a struggle. The two grabbed each other by the collar and started pushing and pulling until the SO was able to toss the Complainant over his hip and onto the ground. The officer positioned himself on top of the Complainant and kept his head and shoulder pinned to the ground. Within seconds, the SO was joined by WO #2 whereupon the Complainant was arrested without further incident.
On the aforementioned-record, I am unable to reasonably conclude that the takedown of the Complainant by the SO was excessive. The Complainant had just assaulted the SO by closing the driver’s door on him and was actively resisting arrest by tugging at the officer’s collar. In the circumstances, the SO was entitled to use force to subdue the Complainant and the takedown accomplished just that. With the Complainant on the ground and at a positional disadvantage, the SO would be able to better manage any additional resistance.
In the result, though it appears that the Complainant’s right ankle was broken in the course of his interaction with the SO, whether the result of the takedown and/or the struggle that preceded it, I am satisfied on reasonable grounds that the officer conducted himself lawfully throughout their engagement. Accordingly, there is no basis for proceeding with criminal charges in this case and the file is closed.
Date: March 8, 2021
Electronically approved by
Special Investigations Unit
The signed English original report is authoritative, and any discrepancy between that report and the French and English online versions should be resolved in favour of the original English report.